MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Mar 19 2019, 10:26 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Nathan Berkman Curtis T. Hill, Jr. Michigan City, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Nathan Berkman, March 19, 2019 Appellant-Defendant, Court of Appeals Case No. 45A05-1709-PC-2120 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Diane R. Boswell, Appellee-Plaintiff. Judge The Honorable Natalie Bokota, Magistrate Trial Court Cause No. 45G03-1409-PC-16
Riley, Judge
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019 Page 1 of 14 STATEMENT OF THE CASE [1] Appellant-Petitioner, Nathan Berkman (Berkman), appeals the denial of his
post-conviction relief.
[2] We affirm.
ISSUE [3] Berkman presents seven issues on appeal, which we consolidate and restate as
the following single issue: Whether Berkman received ineffective assistance
from Trial Counsel.
FACTS AND PROCEDURAL HISTORY [4] The relevant facts, as set forth in this court’s opinion issued in Berkman’s direct
appeal, are as follows
In August of 2008, Berkman owed approximately $2000 to Olen Hawkins, from whom he had frequently purchased cocaine. On August 30, 2008, Berkman telephoned Hawkins, told him that he had the money he owed him, and arranged a meeting in a supermarket parking lot. Between 4:00 and 5:00 p.m., Berkman told Arlene Timmerman, his girlfriend and with whom he lived, that was going to leave to obtain money and cocaine and that he had to go by himself. Berkman left at approximately 6:00 p.m., in Timmerman’s car.
Berkman met Hawkins in the supermarket parking lot, parked next to him, and entered Hawkins’s vehicle. When Hawkins asked Berkman if he had the money that he owed him, Berkman slit Hawkins’s throat “from ear to ear and he robbed him for a couple ounces of dope and a bunch of money.” [] Berkman
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019 Page 2 of 14 kicked Hawkins’s dead body into the passenger seat and drove Hawkins’s car back to Timmerman’s house, arriving at approximately 9:30 to 10:00 p.m.
When Berkman arrived back at Timmerman’s, he yelled for Timmerman. Timmerman went with Berkman to the garage, where she saw Hawkins’s dead body in the passenger seat of his car. Berkman told Timmerman that he had cut Hawkins’s throat and taken an ounce of cocaine from him. Berkman, Timmerman, and Tanya Sullivan, who was visiting, then smoked crack cocaine in the basement until approximately 1:30 or 2:00 a.m.
Late in the evening of August 31, 2008, or early in the morning of September 1, Berkman retrieved a knife from the kitchen, held it to Timmerman’s neck, and said, “Get your f* * * * * * a* * downstairs now.” [] Timmerman managed to elude Berkman, leave, and go to the home of friend Meghan Johnston. At approximately 7:00 or 8:00 a.m. on September 1, 2008, Timmerman called home, Berkman apologized, and Timmerman returned home. Berkman told her later that day that he had formulated a plan to dispose of Hawkins’s body, which was still in Hawkins’s car in the garage. Early in the morning of September 2, 2008, Berkman drove Hawkins’s car to a field with Timmerman following in her car. While Timmerman waited, Berkman doused Hawkins’s car with gasoline and set it aflame. Hawkins’s burned-out car and remains were discovered on November 19, 2008.
Berkman v. State, 976 N.E.2d 68, 71 (Ind. Ct. App. 2012) trans. denied, cert.
denied, 571 U.S. 863 (2013).
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019 Page 3 of 14 [5] On June 9, 2009, the State filed an Information, charging Berkman with murder
and felony murder in the perpetration of robbery, both felonies. On July 27,
2011, a jury acquitted Berkman of murder but failed to reach a verdict on the
felony murder Count. A second jury trial began on August 30, 2011. After a
seven-day jury trial, Berkman was found guilty on the felony murder charge.
On October 3, 2011, the trial court conducted a sentencing hearing and
sentenced Berkman to a term of sixty years in the Department of Correction.
Berkman appealed.
[6] On direct appeal, Berkman raised four issues: (1) whether the trial court abused
its discretion in denying his motion to dismiss as the instant charge was barred
by prohibitions against double jeopardy; (2) whether the trial court abused its
discretion in denying his motion for a mistrial because the trial court admitted
certain testimony from a previous trial; (3) whether the trial court abused its
discretion in admitting certain deposition testimony; and (4) whether his sixty-
year sentence was inappropriate. On September 4, 2012, we affirmed the trial
court. On March 7, 2013, the Indiana Supreme Court denied transfer. On
October 7, 2013, the United States Supreme Court denied Berkman’s petition
for certiorari.
[7] On September 23, 2014, Berkman filed a pro se petition for post-conviction
relief. On November 24, 2014, the State filed an answer. Following a hearing,
on December 3, 2015, Berkman was permitted to file an amended petition,
which he filed on June 20, 2016. The State also filed an amended response
brief, and a hearing was conducted on August 12, 2016. The parties
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019 Page 4 of 14 subsequently filed their proposed findings of fact and conclusions of law. On
August 25, 2017, the trial court issued findings of facts and conclusions thereon
denying Berkman’s petition for post-conviction relief.
[8] On September 7, 2017, Berkman filed a notice of appeal. After three extensions
of time, Berkman submitted a defective brief on April 18, 2018. On May 21,
2018, we dismissed Berkman’s appeal with prejudice. Berkman sought
rehearing, which we denied on June 29, 2018. On July 12, 2018, Berkman filed
a verified motion to file a belated brief and also filed a defect-free appellant’s
brief and appendix. On August 17, 2018, we granted Berkman’s verified
motion to file a belated brief, reinstated his appeal, and ordered Berkman to file
his brief within thirty days. On the same day, Berkman filed his appellate brief,
and the State subsequently filed a response.
[9] Berkman now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Standard of Review
[10] Berkman argues that he received ineffective assistance of trial counsel. 1 Under
the rules of post-conviction relief, the petitioner must establish the grounds for
relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5):
Strowmatt v. State, 779 N.E.2d 971, 974-75 (Ind. Ct. App. 2002). To succeed on
1 Although Berkman also argues that he received ineffective assistance of Appellate Counsel, he fails to develop that argument, therefore, it is waived for appellate review. See Ind. Appellate Rule 46(A)(8)(a).
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019 Page 5 of 14 appeal from the denial of relief, the post-conviction petitioner must show that
the evidence is without conflict and leads unerringly and unmistakably to a
conclusion opposite that reached by the post-conviction court. Id. at 975. The
purpose of post-conviction relief is not to provide a substitute for direct appeal,
but to provide a means for raising issues not known or available to the
defendant at the time of the original appeal. Id. If an issue was available on
direct appeal but not litigated, it is waived. Id.
[11] Further, the post-conviction court in this case entered findings of fact and
conclusions thereon in accordance with Indiana Post-Conviction Rule 1, § 6.
“A post-conviction court’s findings and judgment will be reversed only upon a
showing of clear error—that which leaves us with a definite and firm conviction
that a mistake has been made.” Little v. State, 819 N.E.2d 496, 500 (Ind. Ct.
App. 2004) (quoting Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000), reh’g
denied, trans. denied. In this review, findings of fact are accepted unless clearly
erroneous, but no deference is accorded conclusions of law. Id. Additionally,
we remind Berkman that he is not entitled to a perfect trial, but is entitled to a
fair trial, free of errors so egregious that they, in all probability, caused the
conviction. Averhart v. State, 614 N.E.2d 924, 929 (Ind. 1993).
[12] Initially, we note that Berkman proceeded pro se before the post-conviction
court and again in this appeal. We have held on numerous occasions that
litigants who choose to proceed pro se will be held to the same rules of
procedure as trained legal counsel and must be prepared to accept the
consequences of their actions. Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct.
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019 Page 6 of 14 App. 2004). Furthermore, while we prefer to decide cases on the merits, we
will deem alleged errors waived where an appellant’s noncompliance with the
rules of appellate procedure is so substantial that it impedes our consideration
of the alleged errors. Id. “The purpose of the appellate rules, especially Indiana
Appellate Rule 46, is to aid and expedite review, as well as to relieve the
appellate court of the burden of searching the record and briefing the case.” Id.
[13] Pursuant to Indiana Appellate Rule 46(A)(6), the statement of facts should
contain a narrative description of the relevant facts in light of the applicable
standard of review. In addition, the argument section of an appellant’s brief
should “contain the contentions of the appellant on the issues presented,
supported by cogent reasoning. Each contention must be supported by citations
to the authorities, statutes, and the Appendix or parts of the Record on Appeal
relied on . . .” Ind. App. Rule 46(A)(8)(a). We will not consider an appellant’s
arguments on appeal when the appellant has failed to present cogent argument
supported by authority and references to the record as required by the rules.
Shepherd, 819 N.E.2d at 463. If we were to address such arguments, we would
be forced to abdicate our role as an impartial tribunal and would instead
become an advocate for one of the parties. Id. This we cannot do. Id.
[14] Although Berkman cites numerous cases within the argument section of his
brief, he fails to use them in developing contentions in support of his position.
Rather, they are merely general statements of rules of law without any
application to the claims at hand. While we prefer to decide issues on the
merits, where the appellant’s noncompliance with appellate rules is so
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019 Page 7 of 14 substantial as to impede our consideration of the issues, we may deem the
alleged errors waived. Shepherd, 819 N.E.2d at 463. Although we would be
justified to waive a majority of Berkman’s issues on appeal, we will nevertheless
attempt to address his arguments in so far as we can decipher them. However,
we refuse to comb through the record or transcript to find evidence to support
his allegations as we will not become an advocate for a party, or address
arguments that are inappropriate or too poorly developed or expressed to be
understood. Id.
II. Ineffective Assistance of Counsel
[15] Berkman contends that he was denied the effective assistance of Trial Counsel.
The standard by which we review claims of ineffective assistance of counsel is
well established. In order to prevail on a claim of this nature, a defendant must
satisfy a two-pronged test, showing that: (1) his counsel’s performance fell
below an objective standard of reasonableness based on prevailing professional
norms; and (2) there is a reasonable probability that, but for counsel’s errors the
result of the proceeding would have been different. Jervis v. State, 28 N.E.3d
361, 365 (Ind. Ct. App. 2015) (citing Strickland v. Washington, 466 U.S. 668,
690, 694, (1984) reh’g denied), trans. denied. The two prongs of the Strickland test
are separate and distinct inquiries. Id. Thus, “if it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
course should be followed.” Timberlake v. State, 753 N.E.2d 591, 603 (Ind.
2001) (quoting Strickland, 466 U.S. at 697) reh’g denied; cert. denied, 537 U.S. 839
(2002).
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019 Page 8 of 14 A. Evidence of Acquittal
[16] Berkman claims that his Trial Counsel was ineffective for failing to advise the
jury that he had been acquitted of murder in the first trial. At his post-
conviction hearing, Berkman questioned Trial Counsel why he did not
introduce evidence of his prior acquittal pursuant to Coleman v. State, 946
N.E.2d 1160, 1163 (Ind. Ct. App. 2011). Trial counsel testified that he did not
believe that Coleman provided him with a legal basis to attempt to bring to the
attention of the jury that Berkman had been previously acquitted of murder.
[17] In Coleman, Coleman shot two of his friends during a confrontation. Id. The
State charged Coleman with murder, a felony, for the death of one of the
victims, and attempted murder, a Class A felony, for shooting the other friend.
Id. During a jury trial, Coleman admitted to the shootings, but contended that
his actions against both victims were justified due to self-defense. Id. The jury
returned a verdict of not guilty on the murder charge, but was unable to reach a
verdict on the attempted murder charge. Id. The trial court declared a mistrial
on the attempted murder charge and scheduled another trial. Id. Prior to retrial
Coleman filed a motion to dismiss contending a subsequent trial on attempted
murder was barred by collateral estoppel and would therefore violate the
Double Jeopardy Clauses of both the United States and Indiana Constitutions.
Id. After a hearing, the trial court denied the motion. Id. A retrial ensued, at
the conclusion of which the jury found Coleman guilty as charged. Id.
Thereafter the trial court sentenced him to a term of forty-five years. Id.
Coleman appealed raising several issues for review. Id. In a divided opinion
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019 Page 9 of 14 we reversed Coleman’s conviction on grounds of collateral estoppel. Id. Our
supreme court granted transfer, reaching a different conclusion on the issue. Id.
Our supreme court also addressed Coleman’s claim that the trial court had
erred by not permitting him to introduce evidence that he was acquitted in the
shooting death of a victim. Id. The court found that the evidence of Coleman’s
acquittal of the murder charge was inadmissible in the subsequent attempted
murder prosecution, since the video documenting the shooting of the attempted
murder victim did not reveal that Coleman shot the murder victim, thus, there
was no evidence of the prior crime. Id. Specifically, the court found that “in
the absence of any evidence revealing a crime against” the murder victim,
Coleman “was not entitled to introduce evidence of [the] acquittal.” Id. at
1170.
[18] Trial Counsel would not have successfully argued for the admission of evidence
of Berkman’s prior acquittal by relying on Coleman. Coleman is inapplicable to
this case and simply does not stand for an all-inclusive admission of evidence of
a prior acquittal is admissible. Moreover, Berkman makes no attempt to show
how Coleman allows evidence of a defendant’s prior acquittal admissible. In
addition we find that the fact that Berkman was acquitted of the murder charge
in the first trial was of no moment. Our Supreme Court has held that a crime of
which a defendant has been acquitted is admissible to show proof of motive,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident. Hare v. State, 467 N.E.2d 7, 18 (Ind.1984). Berkman does not claim
that his prior murder acquittal was relevant for any legitimate purpose such as
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019 Page 10 of 14 “motive, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident.” Id.
[19] Moreover, it is well established that counsel is afforded considerable discretion
in choosing strategy and tactics. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001).
We strongly presume that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment. Id. At
the post-conviction hearing, Trial Counsel explained that he was aware of
Coleman at the time of the trial, but he could “think” not “legal basis” to
attempt to bring to the attention of the jury that Berkman had been previously
acquitted of murder. It is apparent that Trial Counsel exercised reasonable
professional judgment when he decided not to introduce evidence of Berkman’s
prior acquittal of the murder charge.
[20] Based on the foregoing, we conclude that Berkman’s Trial Counsel could not
have been ineffective for failing to present evidence of Berkman’s acquittal,
since the trial court would not have admitted that evidence.
B. Robbery Charge
[21] Berkman argues that his Trial Counsel performed deficiently since he failed to
argue at his trial, that State should have additionally charged him with robbery,
the underlying felony for the felony murder. The State contends that it does
“not need to charge both felony murder and the underlying felony when
charging a defendant with felony murder. In fact, the State frequently charges
felony murder as a stand-alone offense and does not charge the underlying
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019 Page 11 of 14 felony.” (Appellant’s Br. p. 26). The State continues, “Berkman can point to
no requirement in the law, and the State is unaware of any, that requires the
State to charge the underlying felony in addition to felony murder as a separate
[C]ount in the charging [I]nformation.” (Appellant’s Br. p. 26). We agree with
the State.
[22] Although Berkman cites to several cases where the underlying felony in
addition to the felony murder was charged, those cases are inapplicable in this
case since they do not establish that the State was required to separately charge
the underlying felony. Trial Counsel would not have prevailed in arguing at
trial that the State should have charged Berkman with robbery in addition to
murder. Therefore, Trial Counsel cannot be said to have performed deficiently
by failing to raise an argument that was completely unsupported by law and
that would not have been successful at the trial. Similarly, we conclude that the
Trial Counsel did not render deficient performance.
C. Failure to Object
[23] To establish ineffective assistance based on the failure to object to the admission
of evidence, the petitioner must show that an objection would have been
sustained had it been made and that the petitioner was prejudiced by the failure
to object. Taylor v. State, 929 N.E.2d 912, 918 (Ind. Ct. App. 2010), trans.
denied. Strickland does not require any more of counsel’s performance than that,
and it “does not guarantee perfect representation, only a reasonably competent
attorney.” McCullough v. State, 973 N.E.2d 62, 76 (Ind. Ct. App. 2012), trans.
denied. Moreover, the inquiry under Strickland is not whether trial counsel
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019 Page 12 of 14 could have done more, but instead whether counsel’s performance fell below an
objective standard of reasonableness based on prevailing professional norms.
See Strickland, 466 U.S. at 694. Additionally, we remind Berkman that he is not
entitled to a perfect trial, but is entitled to a fair trial, free of errors so egregious
that they, in all probability, caused the conviction. Averhart, 614 N.E.2d at 929.
[24] As far as we can discern, Berkman contends that Trial Counsel failed to object
to the admission of Timmerman’s deposition at his trial. The record shows that
prior to Berkman’s second trial, Berkman’s former girlfriend, Timmerman, who
was among the State’s key witnesses, was unavailable to testify. Trial Counsel
objected to the admission of Timmerman’s deposition testimony, moved for a
mistrial, but was denied. During the post-conviction hearing, Trial Counsel
explained, “I lost the [] Timmerman argument, but not for lack of trying.”
(PCR Tr. p. 185). Trial Counsel was not ineffective just because the trial court
issued unfavorable rulings in response to his objections. To the contrary, the
facts indeed show that Trial Counsel did his utmost to ensure that
Timmerman’s testimony would not be admitted. Even if Trial Counsel’s
performance fell below an objective standard of reasonableness based on
prevailing professional norms, Berkman cannot show he was prejudiced by
Trial Counsel’s performance. Similarly, we find that the post-conviction court
did not err in denying Berkman’s claim on this issue.
D. Free Standing Claims
[25] In addition to his allegations of ineffective assistance of Trial Counsel, Berkman
asserts numerous complaints against the trial court and the State. Among these
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019 Page 13 of 14 contentions are allegations that the trial court and the State colluded against
him at trial, and that the trial court abused its discretion in admitting certain
evidence. As a general rule, most free-standing claims of error are not available
in a post-conviction proceeding because of the doctrines of waiver and res
judicata. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001). For instance,
“[i]f an issue was known and available, but not raised on direct appeal, it is
waived.” Id. Likewise, “[i]f an issue was raised on direct appeal, but was
decided adversely, it is res judicata.” Id. Accordingly, Berkman waived these
allegations, as their review is unavailable to him in post-conviction relief
proceedings.
CONCLUSION [26] Based on the foregoing, we conclude that Trial Counsel provided effective
assistance to Berkman, and we accordingly affirm the post-conviction court’s
denial of Berkman’s petition.
[27] Affirmed.
[28] Kirsch, J. and Robb, J. concur
Court of Appeals of Indiana | Memorandum Decision 45A05-1709-PC-2120| March 19, 2019 Page 14 of 14